Second Stage speech by Minister of State Sean Kyne on behalf of the Tánaiste
I have been asked by the Tánaiste and Minister for Justice and Equality,
Frances Fitzgerald, T.D., to respond this evening to this Private Member’s
Bill on her behalf as she is unavoidably engaged elsewhere.
Before I begin, may I take this opportunity to place on the record of the
House the Government’s condolences to the family of Judge Michael Reilly,
the Inspector of Prisons, who passed away last Saturday. He was robust and
fair-minded in the way he carried out his work as Inspector of Prisons. He
was not afraid to criticise where this was merited, but he retained the
respect of everyone involved in penal policy throughout his tenure as
Inspector. His loss will be deeply felt by everyone in the prison system –
prisoners and staff alike.
I am aware that Deputy Daly has an ongoing and genuine interest in the
running of the Prison Service. The Tánaiste appreciates the seriousness of
intent behind the bringing of this Private Member’s Bill – the Prisons
(Solitary Confinement) (Amendment) Bill 2016 - however the Government must
oppose it for a number of reasons. I will summarise these reasons before
expanding upon them later.
· First of all, the Bill attempts to micro manage in primary
legislation the regime for dangerous, unwell, vulnerable and
disruptive prisoners. The Tánaiste believes that the current process
of making Prison Rules by way of secondary legislation should
continue.
· Secondly, the Bill would restrict the rights and obligations of a
Prison Governor to ensure good order and safe and secure custody in
his or her prison.
· Thirdly, the Irish Prison Service could not meet the commitment to
ensure that all prisoners in such circumstances be assured access to
work, education, free association and so on, as provided in the Bill.
Indeed, the question arises as to whether the provisions of the Bill
in this regard are realistic, and
· Fourthly, the Bill ‘jumps the gun’ in relation to an ongoing
consideration of the implementation of the revised UN Standard
Minimum Rules for the Treatment of Prisoners - known as the ‘Mandela
Rules’ in respect of solitary confinement.
As I will outline later in my speech, the Director General of the Irish
Prison Service has established and chairs a working group which meets
regularly to review matters relating to protection prisoners and those
subject to a restricted regime, including the issue of solitary
confinement. The number of prisoners on protection and what is commonly
referred to as “23 hour” lock up has reduced dramatically since 2013. A
sub-Committee is also examining policy proposals to eliminate insofar as
possible solitary confinement from Irish prisons.
It’s also important to place these developments in the wider context of
prison reform. Huge improvements have been made to prison conditions in
recent years. For example, overcrowding and the practise of slopping out
has been eliminated in Mountjoy Prison, a brand new replacement prison was
built in Cork and progress is being made in developing Limerick prison.
Turning again to the Private Members’ Bill before the House, as things
stand, section 35 of the Prisons Act 2007 - that section which the draft
Bill seeks to amend - allows the Minister for Justice and Equality make
rules for the regulation, conditions and good governance of prisons. Those
rules are currently made in Statutory Instrument No 252 of 2007 (Prison
Rules 2007), as amended. Changing Prison Rules by way of Statutory
Instrument allows relatively easy adaptability of regimes in changing
circumstances. These changing circumstances could derive from developments
in prisons in terms of numbers, new regimes, new policies, new buildings,
new international practices and so on. In the future, it could be possible
to make changes in prison regimes heading towards those proposed in the
Bill but the existence of primary legislation may make such changes more
difficult to bring about.
In relation to the restrictions in the Bill on the rights and obligations
of a Prison Governor to ensure good order and safe and secure custody in
his or her prison, it is necessary to examine what the Bill provides and
what is provided in the current Prison Rules.
The definition of Solitary Confinement in the Bill is as follows;
“the restriction of a prisoner’s opportunities for meaningful human
interaction and communal association for 22 to 24 hours a day,
whether by means of restricting the prisoner to a cell or by any
other means.”
The Bill goes on to limit solitary confinement to 15 days in all
circumstances. It also seeks to guarantee the continuation of access to
services such as education and work training as well recreation and
association with other prisoners, to those in solitary confinement. It
seeks to prevent a prisoner with a mental illness or disability being
subject to solitary confinement, to remove the sanction of confinement in a
cell as a punishment from disciplinary proceedings and to stipulate that no
prisoner on remand be subject to solitary confinement in all circumstances.
In the existing Prison Rules 2007, as amended, there is no mention of or
definition of the term ‘solitary confinement’. Rather, there are a
specific set of provisions contained in Rules 62, 63, 64 and 66 - under the
collective heading entitled “Control, Discipline and Sanctions” - on which
basis prisoners may have their normal prison regime restricted for a
variety of reasons. The statistics on restricted regimes are published on
the Irish Prison Service website - www.irishprisons.ie.
Rule 62 provides that a direction can be given by the prison Governor to
restrict the regime of a prisoner by removing him from structured activity,
participation in communal recreation and association with other prisoners
on the basis that there is a significant threat to the maintenance of good
order or safe or secure custody. This allows, for example, the prison
system to isolate gang leaders, other dangerous and serious criminals and
those suffering from serious mental illness who pose a risk to themselves
and others from the general population.
Rule 63 provides for the protection of vulnerable prisoners and allows for
a prisoner to be kept separately from other prisoners who are likely to
cause significant harm to him. This Rule allows Governors to remove
vulnerable prisoners from the general population in the interests of the
prisoners themselves and the security of the prison in general. This
includes vulnerable prisoners who wish or need to be kept away from the
general prison population for safety reasons. There are also some prisoners
who cannot mix with any other prisoners for various reasons, sometimes at
their own request. It would be impossible given current resources to meet
the statutory obligation, as the Bill seeks to do, to provide education,
work, training, association etc. to such prisoners
Rule 64 provides that a prisoner may be placed in a Safety Observation Cell
on medical grounds such as severe mental illness or in a Closed Supervision
Cell on the grounds of risk/harm. The Bill would curtail the option of
using special observation cells. There has been a significant rise in
committals suffering serious mental illness in recent years and a number
currently in custody are on a waiting list for admission to the Central
Mental Hospital.
Rule 66 provides for procedures in respect of breaches of prison discipline
with the option of confinement in a cell for a maximum limit of three days
as a form of punishment. Under this Rule, prisoners can only be confined
to a cell as a form of punishment up to a maximum 3 days. This is rarely
applied and only in the most serious cases.
Strict procedures apply to the making a prisoner subject to these Rules.
The Rules contain review mechanisms which prevent them being used in an in
arbitrary way. All actions taken in relation to prisoners and the overall
system itself are subject to scrutiny by the Inspector of Prisons and this
will not change when a successor to the late Judge Reilly is appointed,
Moreover, I should say all prisoners including those segregated from the
general population already have the protection of the rights established
under the Irish Constitution and the European Convention on rights which
are enforceable through the courts.
The Bill, if enacted, would also have significant resource implications and
it is unclear how these would be met. The Irish Prison Service also
believes it would be detrimental to the good order and security of prisons
if the most dangerous, unwell and volatile of prisoners were to be
guaranteed free association with other prisoners and access to structured
activities. Furthermore, there are considerable safety risks in the
provision of one-to-one services in such circumstances and, indeed, would
involve considerable staff resources which are simply not available.
I want to turn now to the point about this Bill ‘jumping the gun’ in terms
of an ongoing consideration of the implementation of the revised UN
Standard Minimum Rules for the Treatment of Prisoners - known as the
‘Mandela Rules’. These UN Rules were first adopted in 1957, and in 2015
were revised and adopted as the Nelson Mandela Rules. The vast majority of
the principles described in the Mandela Rules, whilst not mandatory, are
reflected in the Irish Prison Rules 2007, as amended. However, there are
some exceptions and these include the categorisation of prisoners, separate
accommodation for prisoners and solitary confinement. It is important to
stress that this Bill goes much further that the Mandela Rules in providing
for the right to access to work, training, education, rehabilitation and
other services whilst on restricted regimes.
Although Ireland has not yet signed up to the Mandela Rules it is
recognised that they are regarded as a source of standards internationally
in relation to treatment in detention. Although the Irish Prison Service is
committed in its current Strategic Plan to compliance with international
human rights obligations and makes specific reference to the Mandela Rules,
the nuts and bolts of this need to be teased out. To that end, the Director
General of the Irish Prison Service has established and chairs a working
group which meets regularly to review matters relating to protection
prisoners and those subject to a restricted regime which includes the issue
of solitary confinement.
Already, significant progress has been made. The number of prisoners on
protection and what is commonly referred to as “23 hour” lock up has
reduced. Since July 2013, the number of prisoners on 22/23 hour lock up has
decreased from 211 to 31 - a decrease of 85%. The working group is
continuing its work with a view to eliminating “23 hour” lock up from the
prison system. However, the protection of vulnerable prisoners can be quite
challenging and the elimination of “23 hour” lock” is not something which
can be achieved overnight but is one which the IPS is committed to
eliminating, to bring it into line with the Mandela Rules.
The Director General has also established a sub-Committee to draft a policy
with the aim of eliminating insofar as is possible solitary confinement
from Irish prisons – acknowledging that there will always be medical
exceptions, particularly given the number of seriously mentally ill
prisoners currently held in Irish prisons and awaiting admission to the CMH
and other mental health facilities. The Policy will be presented to senior
management for consideration, by end January 2017.
After the policy is developed and implemented, the Tánaiste could then
consider whether to commit to signing up to adopting the Mandela Rules in
this specific area by way of amendment to the Prison Rules.
In conclusion, the Tánaiste acknowledges Deputy Daly’s intent behind this
Bill but believes that she cannot accept it, both in terms of the content
and in terms of the legislative vehicle being used. The use of Prison
Rules, done by way of statutory instrument, remains, in her view, the most
effective and efficient way of adapting to changing circumstances. In
terms of the substance of the issue, the Tánaiste supports the ongoing
efforts of the Irish Prison Service to develop its policy on this issue in
a way which improves the conditions of prisoners while having equal regard
to safe and secure custody of prisoners overall and to good order in the
prison.